England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		5 July 2006

1. LORD JUSTICE MAY: Nigel Pillar and Marrion Pillar have various grounds upon which they challenge decisions of district judges at Bow Street in extradition proceedings in response to a category 1 European arrest warrant proceeding from the Provincial Court at Klagenfurt in Austria. There is an appeal for each of them against the decision of District Judge Anthony Evans, on 2 May 2006, and an application by Nigel Pillar for judicial review of an antecedent decision of the same district judge on 19 April 2006.
2. This earlier decision was under section 25 of the Extradition Act 2003 at which it was contended unsuccessfully, on behalf of Nigel Pillar, that his physical and mental condition was such that it would be unjust or oppressive to extradite him. The second decision rejected various contentions why an extradition order should not be made.
3. Section 26 of the 2003 Act provides that a person against whom an Extradition Order is made may appeal to the High Court. Such an appeal may be brought on a question of law or fact. By section 27 the court may allow the appeal in a variety of wordily expressed circumstances, which really add up to saying that the district judge's decision was wrong. A preliminary point is taken as to the validity of the warrants and it is not in issue but that if the warrants are incompetent the proceedings depending on them fall.
4. The brief background is as follows: there were protracted civil proceedings in this jurisdiction in the Chancery Division in which one of two claimants was Gertruda Josephine Maria Derksen and two of several defendants were Mr and Mrs Pillar. A fairly detailed account of these complicated proceedings may be found in a judgment of Hart J of 12 December 2003, [2003] EWHC 3050 Ch when he dealt with an application for a stay of those proceedings and applications for default judgment, or summary judgment, against Mr Pillar. Paragraph 6 of Hart J's judgment reads as follows:

"The first claimant ("Mrs Derksen") is a Dutch lady of considerable wealth. The second claimant is a Dutch company owned by her and used as her alter ego. In November 1997 Mrs Derksen met Mr Pillar, a jewellery dealer, at an antiques fair in Vienna and purchased some jewellery from him. They thereafter became close friends and numerous transactions in relation to jewellery in particular took place between them. Arising out of that relationship the claimants allege that they became victims of a series of frauds practised on them by Mr Pillar, either alone or in combination with Mrs Pillar and the third defendant ("Mr Pell") who was Mr Pillar's book-keeper. The Particulars of Claim narrate these frauds under seven different heads, namely,"

5. and I simply give the headings of the seven allegations: (1) was "The Ten Percent fraud": 2), was "The Jewellery Fraud"; (3) was "The Furniture Fraud"; (4) was "The Liverpool Road Fraud", 5) was "The Schloss Lolling Fraud"; (6) "The Schloss Lolling Renovation Fraud"; and (7) "The Swiss Investment Fraud". There is within the judgment of Hart J a description of the various allegations under these seven headings.
6. The conduct, which was alleged in those proceedings, was alleged to have taken place between approximately 1997 and approximately 2001. In their outline the chronology of the civil proceedings included that on 24 May 2002 a search order, or a Norwich Pharmacol order was applied for against Mr and Mrs Pillar. The claim form was served on 27 May 2002 on which date, or there about, the search order was executed. Things proceeded. A freezing order was imposed.
7. On 30 March 2004, the appellants were declared bankrupt and so it was that the English civil proceedings petered out and the Austrian criminal proceedings were instigated by a detailed complaint to Austrian prosecuting and judicial authorities by Mrs Derksen, a copy of which we have in English translation emanating from Mrs Pillar. This appears, on superficial examination, to rely on much the same matters as were alleged in the English civil proceedings. It was on 12 August 2004 that an order emanated from the Provincial Court at Klagenfurt. The warrants were European arrest warrants and the warrants in question contained statements of fact in paragraph E translated into English as follows:

"On request of the public prosecutor's office of Klagenfurt, dated 3rd May 2004, and based on the contents of the complaint of the Criminal Investigation Department of the Provincial Police Headquarters (LGK) for Carinthia, dated 26th April 2004, judicial investigations have been carried on against the aforementioned person upon suspicion of serious professional fraud. During the building activities of the castle "Schloss Lolling", Christian Friedel in colloboration with the suspected submitted, at that time, to the injured person, Gertruda Derksen invoices increased by 30%. Furthermore, she was deceived with regard to the sale of the castle "Schloss Lolling" because of false statements concerning the owner as well as concerning the relationship of the suspected with the owner. Moreover, since 1997, in this context, false indications of origin have been given by the accused regarding the sale of 41 objects of antique furniture and a great number of jewellery and ornaments. Thereby, the person who suffered the loss was deceived as to the origin and by paying an excessive price she was injured to her property. According to the indication of the injured person, the damage sum amounts to approximately 2 million euro."

8. There then follows in the warrants extracts from the Austrian penal code specifying particular offences.
9. There are a number of grounds of appeal, the first of which is that the European arrest warrants, that formed the basis of the extradition proceedings, were defective and as such the order for extradition had no lawful basis. The court has considered this ground of appeal first.
10. So far as the proceedings before the district judges were concerned, an initial application was made on 17 January 2005 before District Judge Pratt to discharge the appellants on the basis that the warrants were defective and void from the start. The district judge did not accede to that application. We do not have any copy or transcript of his reasons for doing so. We are told that they were short. The matter was adjourned. We are told that at a further hearing before District Judge Pratt the appellants, through counsel, sought to reopen the question of the validity of the warrants, but he declined to do so.
11. The application having been adjourned to consider whether extradition ought not to take place by reason of the passage of time, District Judge Pratt unfortunately subsequently became indisposed and the case was transferred to District Judge Anthony Evans. The issue as to validity was not retaken by him on the agreed basis that the validity of the warrant was a wholly discrete issue. It was evidentially distinct from the bars to an extradition that were otherwise argued, and there was no proper basis for asking the court to remake what was, in essence, a decision of the same court. Accordingly, although on 2 May 2006 District Judge Evans ruled on other grounds that the appellant's extradition was not barred by reason of passage of time, or because it was oppressive or unjust, District Judge Evans himself made no judgment separate from that of Judge Pratt as to the validity of the warrant.
12. It is contended by Miss Dobbin, on behalf of the appellants, that the European arrest warrants issued in respect of the appellants are defective because they do not comply with the requirements of the Extradition Act 2003 and as such are void. Before turning to the 2003 Act itself, I should observe that the Act was passed in response to the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States 2002/584/JHA. Emanating from that the required contents of a warrant are set out in section 2(4) of the 2003 Act. Where a warrant contains a statement that the person is sought as an accused, the warrant must contain:

"(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."

13. These requirements correspond with those in Article 8 of the Framework Decision which requires, among other things, a description of the circumstances in which the offence was committed including the time, place and degree of participation in the offence by the requested person. Here there were warrants in the same terms for each appellant.
14. The court is competent to examine whether these requirements are met because the validity of the warrant is a necessary foundation for its jurisdiction. In this respect our attention has been drawn to a number of authorities, including Vey v Office of the Public Prosecutor of the County Court of Montlucon [2006] EWHC 760 (Admin) and Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2006] EWHC 167 (Admin).
15. The question was considered also in the House of Lords in a decision called the Office of the King's Prosecutor, Brussells v Cando Armas and another [2005] 3 WLR 1079. At paragraph 28 of the judgment in that case Lord Hope said:

"If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it. And if the offence that it describes is not an extradition offence within the meaning of section 64 or 65, as the case may be, the judge must order the person's discharge: section 10(3). In either of these two situations there is no way back for the judicial authority of a category 1 territory."

In Vey v Office of the Public Prosecutor of the County Court of Montlucon, this court held that there must be clarity in order to meet the requirements of section 2(4). In paragraph 32 of that decision the court said this:

"In the instant case there is no clear statement whatever of the circumstances in which the Appellant is alleged to have committed the offence nor of her conduct. Those are requirements not only in s 2(4)(c) but in art 8(e) of the Framework Decision. The space in the warrant provided for describing the circumstances of the offence and the level of participation of the wanted person, is mainly taken up with an account of the arrest, questioning, confession and accusations of the Appellant's son."

At paragraph 35 of the same judgment the court said this:

"The absence of the information required leads to the conclusion that the warrant does not comply with s 2(4) of the 2003 Act. Although s 27 does not contain any specific reference to the requirements of s 2(3) or (4) it was not disputed but that a failure to comply with those requirements goes to the validity of the warrant. The validity of the warrant is the foundation for the judge's jurisdiction. In those circumstances both the District Judge and this court must consider any question of validity raised. If the warrant is not valid there is no jurisdiction to order extradition under the Act. In so saying I do not understand that I am expressing any principle which is controversial."

In Boudhiba Smith LJ, giving the leading judgment in this court, said as follows:

"The structure of the Act purports to set out exhaustively the procedure to be followed. Certain questions are to be considered at the initial hearing; then others at the extradition hearing. On the face of it, the adequacy of the warrant and compliance with the requirements of s 2 are not questions to be considered at either hearing. From their position in the Act, it appears that they are preliminary matters which should be considered before the warrant is given a certificate by the designated authority in this country pursuant to s 2(7). However, we were told that, prior to certification, the warrant is scrutinised by the Crown Prosecution Service, who may seek the advice of counsel. That is necessarily a one-sided process. If the warrant is certificated, the arrest is authorised. If the person arrested considers that the warrant is inadequate and his arrest unlawful, he can apply for habeas corpus. But, if he does not do that and the case proceeds against him, must it be taken that he has waived any objection to the validity of the warrant? On reflection, I think not. The warrant founds the jurisdiction of the appropriate judge. Even if no objection is taken to the validity of the warrant, it must be assumed that the court has considered and been satisfied as to its validity. Otherwise it could not have accepted jurisdiction. So, even though validity is not expressly mentioned in the Act as a question which must be determined, it must be treated as a question which has been answered. If, at any stage of the proceedings, the question of validity is raised, it calls jurisdiction into question. For that reason, despite the absence of an express power to consider compliance with s 2(3) or 2(4), I am satisfied that the appropriate judge is entitled to consider and determine whether, as a result of non-compliance with those provisions, he does not have jurisdiction. Further, the jurisdiction of this court is also dependent on the validity of the warrant. So, although s 27 permits this court to allow an appeal only if it is satisfied that the appropriate judge ought to have decided a question before him at the extradition hearing differently or would have decided it differently if he or she had considered the new issues or evidence raised on appeal, this court can still examine the validity of the warrant. If this court were to hold that the warrant did not comply with section 2, the proceedings would have been a nullity."

16. Miss Dobbin submits that in the present case the warrants were defective and therefore void because they omit the information required under section 2(4)(c). This, she says, is not information that the court is capable of inferring. The warrants purport to supply the description of circumstances in which the offences were committed, but they omit all references to where the offences were said to have been committed. There is simply no mention of the jurisdiction that the offences were said to have taken place in; there is only mention of offences being linked to building activities at the Castle Schloss Lolling, wherever that might be, so far as the warrant is concerned.
17. The warrant omits any reference to the time frame of the alleged conspiracy. The only reference that exists as to any date is that one distinct aspect of the conduct is said to have commenced in 1997. Miss Dobbin submits that the absence of those details the warrant clearly offends against section 2(4). The particulars to be provided by the requesting state under section 2(4) are scant and the absence of required information as to the time and place of the conduct alleged must be regarded as fundamental to the validity of the warrant. This is not, she says, a matter of mere technicality. If the warrant wholly omits any reference to where the offences are alleged to have happened, there is no basis for a court in this jurisdiction to determine how the Provincial Court of Klagenfurt asserts its jurisdiction to try the matters.
18. Miss Dobbin refers, in particular, to sections 10(2) and 64 for what constitutes an extradition offence. She submits that it is quite clear that the deficiencies in the warrant make it impossible for the court properly to determine whether extradition offences are made out. It is thus submitted, on the basis of what Lord Hope said in Cando Armas, that the warrant that is before the court is not a warrant for the purposes of Part 1 of the Extradition Act 2003 and as such that Part 1 of that Act is incapable of applying to it.
19. On behalf of the requesting court Mr Caldwell submits that the warrant does give sufficient particulars of the conduct alleged against the appellants. He submits that the warrants satisfy section 2(4)(c) of the 2003 Act in that they state, he says, the time, place and nature of the conduct complained of. I have already quoted the terms of the relevant part of these warrants. In my view Mr Caldwell is in severe difficulties here. There is mention of a place, Castle Schloss Lolling, whose location is not given, and which only relates in the body of the warrant to part of what is said. There is also one mention of a date "since 1997", which is unspecific and again relates only to part. So one part has no date, the other part no place and the whole is, to my mind, irretrievably vague, if it is taken alone.
20. I take account of the fact that Mr Caldwell submits that section 2(4) provides a protection to an accused person that they should be told, with sufficient particularity, the nature of the allegations made against them. The degree of particularity was considered in the case of Fofana and Belise v Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin). In that case Auld LJ, considering the case of Palar where the particulars of the warrant were found to be wholly inadequate, said as follows at paragraph 39 of his judgment:

"Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal "pleading" vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:

'…the background to the relevant provisions made in the 2003 Act is an initiative of European law and …the proper administration of those provisions requires that fact to be borne firmly in mind… the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme..."

21. It is to be noted that Auld LJ said nothing to detract from the fact that the warrant had to state when and where the offence, or offences, are alleged to have been committed.
22. Mr Caldwell submits that some allowance should be made for the difference of approach between European jurisdictions, and if there is ambiguity in the substance of the warrant regard may be had to further documentation to clarify the position. He draws attention to the very short judgment of Toulson J in the case of Kuprevicius [2006] EWHC 1518 (Admin). In that case what Toulson J said in his very short obiter judgment was that if the warrant contained a possible ambiguity, it would be strange if the court could not look at other material which resolved the ambiguity. I do not think that we are concerned in this case really with the question of ambiguity.
23. Mr Caldwell submits that in the present case the request is based on the contents of an information by way of complaint provided by Mrs Derksen to the Austrian authorities. The appellants, he said, have had access to this document throughout these proceedings. Indeed it is contained within their bundle for these proceedings. He says that in it the allegations against the appellants are set out in great detail. He submits that the offences alleged in the warrant relate to exactly the same conduct, and that the requirements of section 2(4) are thereby satisfied.
24. Mr Caldwell indeed questions whether Smith LJ's view in Boudhiba, that a defective warrant made the proceedings a nullity, should be taken literally. He points to Article 15 of the Framework Decision. This provides that if the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide to surrender, it shall request that the necessary supplementary information, in particular with respect to articles which include Article 8, be furnished as a matter of urgency. Mr Caldwell submits that this could not be said if an insufficient warrant was invalid from the start. In this case entirely adequate further information can be found in the complaint.
25. I have already indicated that I do not consider that the terms of the warrants taken alone satisfy the requirements of section 2(4). Indeed in my opinion they fall well short of this. Mr Caldwell struggled to suggest that they did and I would reject his submissions. The question then is whether this court can, and should, hold that the deficiencies can properly be made up by reference to the complaint. On the facts of this case I am firmly of the view that I do not think that they can. The decision under challenge is, in reality, that of District Judge Pratt in January 2005. At that stage the complaint was not before the court. District Judge Evans did not readdress the issue taking District Judge Pratt's decision as already having been made. So District Judge Evans' decision was not made with the supplementing help of the complaint. Supplementing the warrants with the complaint arises for the first time in this court on appeal.
26. We need not go into the technicalities of admitting fresh evidence on appeal. The fact is that the complaint is not put before this court by the Austrian authorities as supplementing their warrant. It is here because the appellants have put it before the court in their own translation. It does not emanate from the Austrian judicial authority for the purpose of supplementing their warrants. What is more, a preliminary look at the complaint shows, to my mind clearly, that it is far from clear which parts of it the warrants intend to pick up. For example, there is no mention I can find in the warrant of the Sloss Lolling Renovation Fraud which features as section 6 of the complaint. Yet further, the complaint is a long document and the particulars which section 2(4) require, and which the warrant lack, do not leap off the page. They may or may not be there, but Mr Caldwell sensibly, I think, made no detailed attempt to show us where and how.
27. I would not decide, one way or the other, whether a warrant which does not comply with section 2(4) may be supplemented in certain circumstances by additional information. I am, however, clear that in this particular case these defective warrants are not saved by the fortuitous presence before the court of the complaint. The heart of the matter is, I think, this: Mr Caldwell's submission might just as well seek to find additional information in the judgment of Hart J, or the pleadings in the civil action, as in this complaint. That plainly would not do because how can this court tell whether the material in those extraneous documents is capable of founding, or being regarded by the Austrian authorities as founding, elements of a requisite offence in Austria. Admittedly the complaint is a complaint to the Austrian judicial authorities, but this court is unable to tell the extent to which the Austrian authorities may have picked it up and included it in what they regard as appropriate Austrian proceedings.
28. It seems to me that if the English court were to have regard to supplementary material to save an otherwise defective warrant, the material would have to come from the requesting judicial authority. This material does not do so. In my judgment, for these reasons the warrants are defective and I would therefore allow the appeal.
29. MR JUSTICE FORBES: I agree.
30. MISS DOBBIN: I have two points: my Lord, said District Judge Platt when it was District Judge Pratt?
31. LORD JUSTICE MAY: I intended to do that. No doubt I may have made a mistake but all references should be to District Judge P R A T T .
32. MISS DOBBIN: The other request is for detailed assessment for legal services funding.
33. LORD JUSTICE MAY: You can certainly have that. Yes by all means. Thank you very much.
34. MR CALDWELL: I make an application for detailed assessment of costs.
35. LORD JUSTICE MAY: I think you should be entitled to that, thank you very much. We are very grateful to everyone who has appeared and those who have worked on this case. Thank you.